Office of the Attorney General
State of Texas

Re: Payment of premiums for county clerks' statutorily
required errors and omissions policy.

Dear Mr. Wade:

You have requested our opinion on the following questions:

1. Since House Bill No. 1774 and Senate Bill No. 824 of the
66th Legislature do not provide that the premiums for the errors
and omissions insurance coverage is additional compensation for
services of the County and District Clerks, may the Commissioners
Court pay out of the general fund of the County the premiums for
the errors and omissions insurance required by House Bill No.
1744 and Senate Bill No. 824 Acts of 66th Legislature 1979?

2. If the Commissioners Court cannot legally pay the
premiums for the errors and omissions coverage as provided for in
the above referenced legislation, are the requirements of House
Bill No. 1774 and Senate Bill No. 824 that the County and
District Clerks obtain such errors and omissions insurance null
and void and without force and effect?

Sec. 5. The premiums for the bonds and the errors and
omissions policies required by this Act to be given, or to be
obtained by the county clerk of each county shall be paid by the
Commissioners Court of the county out of the general fund of the
county.

With respect to the source of premium payments, this current
section 5 is substantially similar to section 4 of article 1937,
as it was amended by House Bill 125, Acts 1965, 59th Leg., ch.
456, at 941, which states:

Sec. 4. Each county clerk shall obtain an errors and
omissions insurance policy, if the same be available, covering
the county clerk and the deputy or deputies of the county clerk
against liabilities incurred through errors and omissions in the
performance of the official duties of said county clerk and the
deputy or deputies of said county clerk; with the amount of the
policy being in an amount equal to a maximum amount of fees
collected in any year during the previous term of office
immediately preceding the term of office for which said insurance
policy is to be obtained, but in no event shall the amount of the
policy be for less than Ten Thousand Dollars ($10,000). The
premiums for said insurance shall be paid out of the funds of the
county by the Commissioners Court of said county. (Emphasis
added).

In Attorney General Opinion C-506 (1965), this office ruled
that the last sentence of section 4 violated the Texas
Constitution. This analysis was based on the principle that a
county is not responsible for the misfeasance or wrongdoing of
its officers or agents. Hence, the use of public money to insure
against losses which are not the county's responsibilities would
be a grant of public money prohibited by section 51 and section
52 of article III of the Texas Constitution.

Attorney General Opinion C-607 (1966) followed the line of
reasoning in C-506 (1965) to the conclusion that the same
sections of the Texas Constitution also prohibited the county's
payment of a short term cancellation premium for a policy of
errors and omissions insurance procured by the County Clerk of
Taylor County pursuant to section 4 of article 1937.

Section 4 of article 1937 was amended by House Bill No. 1134,
Acts 1969, 61st. Leg., ch. 561, at 1711. The provisions
concerning the payment of policy premiums were placed in a new
section 5 of article 1937, which stated:

Sec. 5. The premiums for the bonds and the errors and
omissions policies required by this Act to be given, or to be
obtained, by the county clerk of each county shall be paid by the
Commissioners Court of the county out of the general fund of the
county as additional compensation for the services of the county
clerk and which additional compensation shall be cumulative of
and to all other compensation presently or hereafter authorized
for said county clerk.

Id. at 1712. (Emphasis added).

In Attorney General Opinion M-441 (1969), this office
considered the addition of the emphasized language reciting that
the premium for errors and omissions insurance shall be
considered as additional compensation to the county clerk, and
held that:

such use of public funds falls squarely within the
prohibitions of Sections 51 and 52 of Article III of the
Constitution of Texas. This recitation does not alter the fact
that public moneys are being used to accomplish an unauthorized
purpose; that is, to discharge a liability which is not the
responsibility of the county.

Id. at 3.

In Attorney General Opinion H-1042 (1977) this office
reconsidered the validity of the 1969 amendment to section 5 of
article 1937, and found it constitutionally acceptable, saying:

The payment of the premium here is legislatively directed and
is authorized specifically as additional compensation for the
county clerk. We know of no constitutional restriction on such
legislative action. Tex. Const. art. 3, s 44; art. 5, s 20; art.
16, s 61. See Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. Comm'n
App. 1928, opinion adopted); Attorney General Opinion WW-1101
(1961); see also Wichita County v. Robinson, 276 S.W.2d 509 (Tex.
1954). In our opinion, Dallas County may legally pay, and is
required to pay, the premium for the errors and omissions policy
which article 1937, V.T.C.S., requires the Dallas county clerk to
obtain. Attorney General Opinion M-441 (1969) is overruled.

Id. at 4. This view finds further support in Attorney General
Opinion WW-731 (1959) regarding the use of county funds to
provide hospitalization insurance for county officials and
employees. The opinion stated that 'as long as this insurance is
part of the compensation of the employees and there is statutory
authority for such expenditures the county may pay all or part of
the premiums', Id. at 3. See also Attorney General Opinion M-989
(1971).

The present section 5 of article 1937, quoted above at page 1,
fails to state that the premiums to be paid by the commissioners
court out of the general fund of the county are to be additional
compensation to the county clerk; thus, it violates sections 51
and 52 of article III of the Constitution of Texas under the
reasoning of Attorney General Opinions C-506 (1965) and C- 607
(1966).

Having ruled that sections 51 and 52 of article III of the
Texas Constitution prohibit Dallas County Commissioners Court
from paying the premium on errors and omissions insurance for the
Dallas County Clerk as required by the current section 5 of
article 1937, it is necessary for us to determine the effect of
the invalid section 5 on the remainder of the current version of
article 1937 and on the prior version of section 5.

In addition, if the constitutional and unconstitutional
portions of an act may be separated, this must be done, so as not
to permit the invalid part to destroy the whole. San Antonio
Ind. Sch. Dist. v. State, 173 S.W. 525 (Tex. Civ. App.--San
Antionio 1915, writ ref'd); City of Taylor v. Taylor Bedding Mfg.
Co., 215 S.W.2d 215 (Tex. Civ. App.--Austin 1948, writ ref'd); In
re Johnson, supra.

The invalid portion of article 1937 is only that one paragraph
regarding the source of the payment of policy premiums, therefore
it can and should be separated from the remainder of article
1937. The requirement of section 4 of article 1937 that a county
clerk obtain an errors and omissions insurance policy remains
valid.

The invalidity of the present section 5 of article 1939 not
only fails to unllify the rest of the statute; it leaves
unaffected the constitutionally valid provisions of its
predecessor, the 1969 amendment to section 5 quoted at 3 above.
This rule of statutory construction was first stated by the Texas
Supreme Court in Culberson v. Ashford, 18 S.W.2d 585 (1929) and
it was recently followed in In re Johnson, supra. In Johnson,
the court found that paragraph 3 of the 1975 amendments to
article 2324, V.T.C.S., violated the Texas Constitution, and
citing Culberson, the court held that 'this means that paragraph
3 of the 1961 amendment to Article 2324 (the prior law) remains
in effect.' Johnson, supra, at 787.

In this case, the prior law is the 1969 amendment to section 5
of article 1937, which we have held constitutionally permissible
in Opinion H-1042 (1977). Under the rule of Culberson, this
provision remains effective authority for Dallas County to
continue to pay the premium for the required policy of errors and
omissions insurance as additional compensation for the services
of the county clerk.

SUMMARY

Section 5 of article 1937, Revised Civil Statutes of Texas,
as amended by House Bill 1774, Acts 66th Leg., 1979, ch. 397, at
872, violates the Texas Constitution, article III, sections 51
and 52 insofar as it authorizes the commissioners court to expend
public money for premiums to insure the public against errors and
omissions of the county clerk and his deputies. Attorney General
Opinions C 506 (1965) and C-607 (1966). The prior version of
section 5, article 1937 remains valid authority for Dallas County
Commissioners Court to pay the premiums on the required errors
and omissions insurance as additional compensation to the county
clerk.